IPBiz

Wednesday, December 30, 2009

Brooke Hollow, Inc. is going after Paris Hilton and Antebi Footwear in federal court (D. Wash.) for infringement of design patent D579,642 AND a Lanham Act violation over the use of a heart-shaped comfort pad.

In the Seagate/Convolve/MIT matter over hard drive technology, one has a court filing (affidavit of Paul Galloway) which suggests bad acts by Seagate:

**"According to Mr Galloway, Seagate widely disseminated Convolve's technology throughout Seagate's servo engineering community, but engineers like Mr Galloway, who were exposed to Convolve's technology, were not told that it was protected under an NDA."

**Galloway, who worked for Seagate until July as an engineer, also claimed that Seagate "withheld, if not destroyed, minutes of a server engineering group meetings used as a forum for disseminating Convolve's technology." [from ComputerWorld.

Radio tomographic imaging (RTI) is different and much less expensive than radar, in which radar or radio signals are bounced off targets and the returning echoes or reflections provide the target's location and speed. RTI instead measures "shadows" in radio waves created when they pass through a moving person or object.

RTI measures radio signal strengths on numerous paths as the radio waves pass through a person or other target. In that sense, it is quite similar to medical CT (computerized tomographic) scanning, which uses X-rays to make pictures of the human body, and seismic imaging, in which waves from earthquakes or explosions are used to look for oil, minerals and rock structures underground. In each method, measurements of the radio waves, X-rays or seismic waves are made along many different paths through the target, and those measurements are used to construct a computer image.

In their indoor, outdoor and through-the-wall experiments, Wilson and Patwari obtained radio signal strength measurements from all the transceivers - first when the rectangle was empty and then when a person walked through it. They developed math formulas and used them in a computer program to convert weaker or "attenuated" signals - which occur when someone creates "shadows" by walking through the radio signals - into a blob-like, bird's-eye-view image of that person walking.

Tuesday, December 29, 2009

In a post titled Four new kings of the Hill in Washington , Julian E. Zelizer of Princeton begins:

Last month, Sen. Sherrod Brown of Ohio, a strong defender of the public option for health care, warned: "I don't want four Democratic senators dictating to the other 56 of us and to the country, when the public option has this much support, that it is not going to be in it."

But in the end, those senators won the battle over the public option, as well as several other provisions in the health care bill.

They have emerged as the powerhouses of the Senate.

Zelizer goes on to criticize the Senate rule requiring 60 votes to end a filibuster: The Senate now requires 60 votes on any piece of legislation given that senators are willing to use the filibuster on almost any bill. If the majority party needs 60 votes to pass a bill, and it can't win votes from the other side, a handful of moderates wield tremendous power.

IPBiz notes that the issue is not 60 votes vs. 51 votes or some other number of votes in the Senate. The issue is that when one has comparable number of votes on each side, the swing vote gets a lot of power. The US Supreme Court, wherein there are only nine votes, has the same dynamic.

On today's court, the most powerful Justice is Anthony Kennedy. His power comes not from the art of persuasion (which Kennedy rarely practices) but from the simple arithmetic that five votes beats four — and Kennedy's is the swing vote on almost every issue.

Also, from the Christian Science Monitor: Justice Kennedy maintained his role as the most powerful justice, wielding influence as a centrist swing voter. He cast the decisive fifth vote in each of the three blockbuster decisions and personally authored two of them.

from bbwforums: Anthony Kennedy - With 4 conservatives and 4 liberals, Anthony Kennedy is the supreme court, and gets to decide every case of import.

**Also: http://ipbiz.blogspot.com/2008/10/michael-kirk-on-patent-reform.html: "When you say that the patent system is broken and needs fixing or that it puts innovation at risk, a lot of people are going to believe you. I can even see their influence in the Supreme Court’s decision in the KSR case, written by Justice Kennedy."

**In passing, IPBiz moved up to the most searched IP blawg on blawgsearch on Dec. 29.See http://blawgsearch.justia.com/blogs/categories/intellectual-property-law

**Further, in writing "They [including Ben Nelson] have emerged as the powerhouses of the Senate", Zelizer might note the following:

A new Rasmussen Reports poll shows that if he were running for re-election today, Mr. Nelson would lose to Nebraska's GOP Governor David Heineman by a stunning 61% to 30%. Only three years ago, Mr. Nelson won his current term with a solid 64% of the vote.

Clearly, the senator's fall in public esteem is a direct reaction to his having voted for the health care bill as part of a deal in which Nebraska was exempted from the costs of new federal Medicaid mandates. The ObamaCare bill was already unpopular enough in Nebraska but became even more so when state residents discovered they would be saddled with it anyway, plus exposed to national ridicule over Mr. Nelson's sweetheart deal. Now 53% strongly oppose the bill, while another 11% somewhat oppose it. Only 17% favor the deal that Mr. Nelson struck in order to vote for the bill.

FoxNews reported that the British winner (Ben Southall) of the so-called "Best Job in the World" has been stung by an irukandji jellyfish, which possesses one of the most toxic venoms on the planet. Southall won a six-month contract to serve as caretaker of Hamilton Island, Queensland, Australia, and maintains a blog ["I was feeling pretty hot and sweaty, had a headache and felt pretty sick too, together with pain in my lower back and a tightness in the chest and a really high blood pressure – all classic symptoms of Irukandji syndrome! This was not what I’d wanted at all and had caught me little off guard to say the least – I’m supposed to be relaxing in my last few days on Hamilton Island."]

If the irukandji jelly fish sounds familiar, it should, because it was a plot element on the episode of CSI New York titled Buzzkill. Of relevance to inventors, in that episode, the victim of an idea theft planted the Irukandji Jellyfish in a beach ball intended for use by the idea stealer. Killed the wrong person though. In a different episode of CSI New York ("Death House"), a ripped off inventor did kill the idea stealer. Is CSI New York promoting a Hobbsian alternative to patent infringement lawsuits?

My favorite: “Television won’t be able to hold on to any market it captures after the first six months. People will soon get tired of staring at a plywood box every night,” Darryl Zanuck, 20th Century Fox, 1946.

Of course, that is a "market reception" prediction, not a technology prediction, given by someone with a vested interest, to boot.

Buried within the comment thread, one has

Oh, duh; it was in the article:This end-of-progress view has been echoed many times, including by Charles Duell, commissioner for the U.S. Patent Office, who in 1899 said, “Everything that can be invented has already been invented.”

**No one in the thread mentioned Lord Kelvin's statement that heavier-than-air flight was impossible. That would be an example of a bad technology prediction.

**Another bad "prediction" would be Edison's preference for DC over AC current. Late in his life, Edison said, in looking back, that the biggest mistake he had made was that he never respected Tesla or his work

**Separately, in the beginning of the movie "The Bucket List," there is a statement to the effect that the Supreme Court held in 1943 that Tesla, not Marconi, invented the concept of radio.

Within the Supreme Court opinion:

The Tesla patent No. 645,576, applied for September 2, 1897 and allowed March 20, 1900, disclosed a four-circuit system, having two circuits each at transmitter and receiver, and recommended that all four circuits be tuned to the same frequency. [... He] recognized that his apparatus could, without change, be used for wireless communication, which is dependent upon the transmission of electrical energy.

The priority date for the British Marconi patent was June 2, 1896, but, in a "first-to-invent" country like the United States, that does NOT resolve the question of "who the inventor of radio" is:

"It is well established that as between two inventors priority of invention will be awarded to the one who by satisfying proof can show that he first conceived of the invention."

The Supreme Court, in 320 US 1, did not resolve the question of "who invented the radio."

[refer to Invention of radio, but note the inconsistent wikipedia post: Tesla died of heart failure alone in room 3327 of the New Yorker Hotel, on 7 January 1943.[100] Despite having sold his AC electricity patents, Tesla died with significant debts on the books. Later that year the US Supreme Court upheld Tesla's patent number 645576,[101] in effect recognizing him as the inventor of radio.]

Monday, December 28, 2009

As e-mail has become more prevalent, courts have not hesitated to allow service by e-mail, especially when the defendant lives abroad and is avoiding service. See, e.g., Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1017-18 (9th Cir. 2002) (concluding that service by electronic mail is “reasonably calculated to apprise [defendant] of the pendency of the action and afford it an opportunity to respond;” “when faced with an international ebusiness scofflaw [and] playing hide-and-seek with the federal court, email may be the only means of effecting service of process”); Williams v. Advertising Sex LLC, 231 F.R.D. 483, 488 (N.D.W.V. 2005) (“the Court concludes that service of processby electronic mail is authorized by and warranted under Rule 4(f)(3) of the Federal Rules of Civil Procedure”); Popular Enterprises, LLC v. Webcom Media Group, Inc., 225 F.R.D. 560, 563 (E.D. Tenn. 2004) (“Service of process by e-mail is reasonably calculated to apprize defendant of the pendency of this action and afford it an opportunity to respond.”); see also Philip Morris USA Inc. v. Veles Ltd, No. 06cv2988, 2007 U.S. Dist. LEXIS 19780, at *5 (S.D.N.Y Mar. 12, 2007) (authorizing service of process via e-mail)[.]

Thesis Advisor for Inventor's Research was not a Co-Inventor. The court granted defendant's motion for summary judgment on plaintiff's inventorship claim, rejecting plaintiff's argument that the named inventor's thesis advisor was a co-inventor.

At the end of September, there was a backlog of more than 700,000 unexamined patent applications. The average time to get a first response from the USPTO to a patent application was 25.8 months. This time has risen for at least four years straight.It takes back and forth with the patent office to get a patent. The average time from patent application to eventual patent issuance was 34.6 months, and that time also has risen for at least four years straight.That time is even longer for key technology sectors -- 42.7 months for communications technology and 40.7 months for computers, software and information security.

The immediate limited program is focused on former examiners who passed their probationary requirements and who resigned less than three years ago or have more than three years experience examining patents.

How many are these, and do they really have an incentive to re-join the Patent Office? One commenter wrote:

The fact that 30-40 examiners are still leaving in the midst of the worst job market in decades speaks volumes about the problems that still exist within the agency.

Another wrote:

I couldn't go back because I would pick fights every day. Yes, I would be hauled out in handcuffs the very first day after hunting down a few individuals.

Former examiners who have passed their probationary requirement and who have resigned less than three years ago or have more than three years experience examining patents are invited to apply. The USPTO estimates that a few hundred former examiners are eligible to be rehired, and of that number less than 100 are expected to accept the offer. Vacancy announcements for the positions have been posted at USAJobs.gov. The openings are for GS-9 through GS-14. Bob Stoll, Commissioner for Patents, told me that he hopes the USPTO “can attract as many former examiners back as possible. On an operational level, we would like to deploy them to the technology areas with the biggest backlog that best fit their skills and expertise.”

According to the USPTO, the initiative to rehire examiners will not increase the size of the agency’s workforce, but it will hopefully help the agency keep pace with the attrition rate, at least over the near term. Currently 30 to 40 examiners per month leave the USPTO, and because of budgetary restrictions there has been a hiring freeze for about 8 months.

Hmmm, the people who resigned less than three years ago (when the economy was already going south), probably had good reasons to resign. Not much has changed at the USPTO in terms of improving working conditions, so why exactly would many of these people flock back? Further, if some did, the "less than 100 expected to accept" would account for at most 2-3 months of attrition. Then what? Not much of a plan.

Compugen Ltd announced the discovery and experimental validation of a new drug target for the treatment of a type of cancer, sending its shares up as much as 41 percent in pre-market trade.

The compound, CGEN-671, for the treatment of multiple epithelial tumors, is a membrane splice variant of CD55, a known drug target for gastric cancer, for which monoclonal antibody therapeutics are in clinical development by others, the Israeli biotech company said in a statement.

Compugen has filed patent applications covering the splice variant, CGEN-671, and its various therapeutic and diagnostic utilities, it said.

IPBiz notes some recent US patent applications by Compugen:

US published application 20090317808, titled NOVEL NUCLEOTIDE AND AMINO ACID SEQUENCES AND METHODS OF USE THEREOF FOR DIAGNOSIS to Shirley Sameah-Greenwald, et al.

Initial experimental studies confirmed the existence of the predicted CGEN-671 transcript (mRNA) and demonstrated that, compared with normal tissue samples, it is highly expressed in colon carcinoma tissue. Furthermore, in these mRNA experiments, CGEN-671's expression level in various healthy tissues was up to 200 times lower than the expression level of the previously known cancer target CD55, suggesting that the Compugen discovered splice variant should be a superior drug target candidate for cancer treatment. In addition, the in silico prediction of CGEN-671 identified a unique sequence present in CGEN-671's extracellular domain that is not present in CD55. This sequence allows for the development of antibodies that specifically bind to CGEN-671 and do not recognize CD55.

**UPDATE. 1 Jan 10. Concerning an infectious cancer in Tasmanian devils, from the New York Times, discussing a paper in the journal Science::

A team of Australian and American scientists has now followed up on Dr. Belov’s study, using more powerful gene-sequencing technology to take a closer look at a larger number of Tasmanian devils. To trace the origin of the tumors, the scientists looked at individual cancer cells, recording which genes were active. They found a set of genes normally active only in a type of nerve cell known as Schwann cells. They argue that a single Schwann cell in a single animal was the progenitor of all the devil facial tumor disease cells.

“The lack of genetic variation suggests that the tumors are young,” said a co-author of the study, Tony Pappenfuss, a bioinformatician at the Walter and Eliza Hall Institute of Medical Research in Australia.

(...)Infectious cancer poses a puzzle for biologists. “It is somehow a new organism,” Dr. Pappenfuss said. “I think of it as a parasite.”

(...)Viruses cause 15 percent of all cancers in humans and are also widespread in animals.

The lead author of the Science paper is Elizabeth P. Murchison of the Cold Spring Harbor Laboratory in Cold Spring Harbor, N.Y.

from dbtechno: They noted that the cancer in the sick animals came from cells part of a protective layer that wraps around nerves to protect them.“It’s a uniquely horrible cancer, and it is critical to know about it at the genetic level,” Professor Jenny Graves said.

Sunday, December 27, 2009

SpeedTrack filed suit today [23 Sept 09] in U.S. District Court in the Northern District of California in San Francisco against Amazon.com, Best Buy, Dell and 20 other big names in e-commerce for infringing on SpeedTrack’s U.S. Patent 5,544,360 for Guided Information Access (GIA). GIA is a patented method created by Jerzy Lewak, a theoretical physicist and co-founder of SpeedTrack, to guide users to contextually relevant information, ensuring a result -- no "cannot be found" results. This method is critical to e-commerce conversion rates for Amazon.com, Best Buy, Dell and the other defendants named in the attached complaint because GIA provides the named companies’ customers the ability to locate available products on their Web sites by simply selecting words that describe the product they are interested in purchasing, and guarantees that they will always find an available, matching product.

In the underlying case, Nisus brought suit against Perma-Chink in the United States District Court for the Eastern District of Tennessee. Nisus alleged that Perma- Chink had infringed Nisus’s U.S. Patent No. 6,426,095 B2 (“the ’095 patent”). Perma- Chink asserted the affirmative defense that the patent was unenforceable due to inequitable conduct. Perma-Chink alleged that the attorneys who prosecuted the patent—Mr. Teschner and Mr. Allan Altera—engaged in inequitable conduct when they failed to disclose to the U.S. Patent and Trademark Office the existence of an earlier lawsuit involving related patents as well as material documents that were at issue in that lawsuit. Following a bench trial, the district court held that the ’095 patent was unenforceable because of inequitable conduct and entered judgment in Perma-Chink’s favor. Nisus and Perma-Chink subsequently settled all aspects of the litigation between them and have disclaimed any interest in appealing from the judgment.

MacCreator: Playing the devil's advocate here: Since 'everybody' has Microsoft Word, why does the world need another word processor?

Jerzy Lewak: Those who need a different word processor are usually the very discerning and those who need special features that Microsoft Word does not have. Quoting an old review of our product "God is in the details." Those who find that our details work better for them, are our customers.

MacCreator: Please describe the most important attributes of Nisus Writer Express.

Jerzy Lewak: Our philosophy is to make all the features as obvious as possible and as close to the "surface" as possible. We do our best to avoid the dialog inside a dialog experience. We also have some special features that we have pioneered over the years, such as the PowerFind and PowerFind Pro, Multiple Selections, Multiple Editable Clipboards, and Simple and Advanced Macros.

MacCreator: What is this thesaurus I hear about, and how does it work in NWE?

Jerzy Lewak: The database is WordNet developed at Princeton University. It gives you much more than just synonyms. Words are expressions of ideas and we all know that one idea leads to another, so one word leads to another, to another, to another, etc. So that's how the GUI is organized: select a word in your document, hit the "command MacCreator: What is the difference between NWE and the old Nisus Writer, feature-wise, and regarding ease of use?

Jerzy Lewak: Classic Nisus Writer only works under the Classic system. Nisus Writer Express works only under OS X and was built in Cocoa, from scratch, to take advantage of all the features opened up to true Cocoa applications. For example, the Thesaurus is a Services feature and Services are only available to Coca applications. The look and feel of Nisus Writer Express is different because it uses the new OS X tools. Once the foundations are built in Cocoa, feature additions will be much faster. Building it from scratch has such great advantages, but has also some drawbacks associated with the fact that it takes a lot of work to re-build all the features that we have developed in the Classic version. So our first version of Nisus Writer Express is not as rich in features as the Classic version. The new version we are about to go to beta with, ads the most important, the most user demanded features and is a free upgrade. We plan to continue adding features our users most want.

Little companies struggling with the patent system

[David] Baker, for example, could put his thermal transformer on the market without a patent, but his competitors then could use his technology to make the same product without spending time or money for research and development as he did.

A patent in hand also would give him more credibility with entrepreneurs who fund startups like his.

"(A patent) should help us raise money because people investing in the company will have better confidence in us," said Howard Manske, chief financial officer of PDM Solar. "The patent also allows us to defend our work if someone is doing the same thing or trying to steal our technologies.

A jury in U.S. District Court in Cleveland has ordered Champion Laboratories to pay more than $6.5 million in damages to an Ohio firm in a patent infringement lawsuit. Champion Laboratories is a division of Evansville-based United Components.

Still pending against Champion Labs is a price-fixing lawsuit brought by the Florida Attorney General's Office. Attorney General Bill McCollum brought the suit against nine of the largest manufacturers of aftermarket auto filters, alleging a scheme to maximize profits by illegally fixing prices, allocating customers and eliminating price competition.

The lawsuit alleges the companies have knowingly participated in the scheme since at least 1999 at the expense of Florida consumers and governmental entities.

While a ruling in Bilski and Warsaw v. Kappos isn't expected until next spring, let's hope the court doesn't fall prey to the arguments of Harvard Law School professor Lawrence Lessig and other supporters of the "open source" movement in computer software. They contend that intellectual property rights – which extend 20 years beyond the date a patent is issued – erect barriers to technological progress, discouraging collaboration and slowing economic growth.

IPBiz notes that the current patent term is NOT 20 years from the date of patent ISSUE, nor has the patent term ever been this.

Elsewhere, Shughart writes:

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.

IPBiz notes that patents, as the very term "patent" (as distinct from latent) implies, expose new ideas publicly. They don't "slow down" the diffusion of new ideas; they enhance the diffusion of new ideas. Yes, one cannot make, use, or sell something within the scope of an issued patent claim of another, but one can negotiate with the owner to do so. One can also use the publicly disclosed information to design around the claimed invention, likely making a new invention.

Shughart writes of Dickens:

It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.

Dickens visited the United States twice. Shughart is referring to his second visit which began in Boston on November 19, 1867. As Wikipedia notes, "On 23 April [1868], he boarded his ship to return to Britain, barely escaping a Federal Tax Lien against the proceeds of his lecture tour." Following his return to Britain, Dickens continued to give readings ["Between 1868 and 1869, Dickens gave a series of "farewell readings" in England, Scotland, and Ireland, until he collapsed on 22 April 1869." ]

Dickens showed great courage but little tact in assailing American public opinion on this vexing matter while the United States was paying him honours worthy of a national liberator. That he had not mentioned this issue in advance meant that his adoring audiences, taken by surprise, felt chagrined by the criticisms of this obviously mercenary young upstart who had come to their shores to take their money at the theatre door and again in the bookshop.

(...)

The opposition maintained that literature, like all imaginative creations, should not be regulated by law and commerce, that undercapitalized nations, without public libraries, needed inexpensive access to ideas and entertainment that they could not generate themselves or afford to purchase at high rates, and that the free availability to publishers of an author's works did more to advance his reputation and long-term earnings than the restricted circulation created by the higher price of books on which a copyright royalty was paid.

IPBiz notes that the argument in bold, made circa 1842, is basically the same argument about "green patents" made during Copenhagen 2009.

Dickens had an answer for that in 1842:

A week later, in Hartford, he argued that a native American literature would flourish only when American publishers were compelled by law to pay all writers their due, rather than being able to publish the works of any foreign author for free, a bad custom which only served to discourage literary production by American citizens. [from Allingham post]

Dickens had problems with copyists at home in Britain. Following his return from his first American visit, Dickens went after these copyrists, with little success:

His first great opportunity came with the publication of A Christmas Carol on 19 December, 1843, for within two weeks Peter Parley's Illuminated Library brought out a 'condensed' and 're-originated' edition entitled A Christmas Ghost Story, selling at a mere penny a piece. Two days later, on January 8th, 1844, Dickens filed for a court injunction to halt publication; the injunction granted on the 10th, he then set out to sue Parley's owners, Richard Egan Lee and Henry Hewitt. His victory was Pyrrhic, for the piratical firm declared bankruptcy, leaving Dickens to pay his court costs of £700, against a profit of only £230 on the sale of six thousand copies by the end of 1843, according to Forster's Life of Charles Dickens, but likely closer to £130, according to Peter Ackroyd. At this point in his life, copyright was no mere abstract question of business ethics for Dickens as images of the debtors' prison swam before his eyes. [from the Allingham post]

Bolivia, the Philippines and Indonesia called for the exclusion of patents over such [green] technologies, while Canada, Switzerland and the U.S. said they want to see strong intellectual property rights retained. The less-developed countries maintain that only through exclusion of patent rights could they be induced to quickly reduce emissions so the global problem of climate change is solved. Bolivia suggested that some patents lead to monopolies.

Sharing patents that protect the environment is a way to: –Address a wide range of challenges and threats to our planet –Foster new collaboration and innovation

**A sub-committee of the United Nations Framework Convention on Climate Change, called the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) has been working on draft proposed terms for administering the long-term implementation of the convention’s objectives. The proposed terms will address numerous issues pertaining to global warming, including provisions that could potentially impact the intellectual property rights of global signatories.

While the convention has acknowledged the fact that patent rights play a role in crafting the solutions needed to address climate change, it has also specifically noted the view that patents can be a barrier to technology transfer.

The June 2009 negotiating text of the AWG-LCA specifically calls for a prohibition on patents or for the compulsory licensing of patents on basic biotechnology inventions.

Friday, December 25, 2009

From an article by Sean B. Carroll in the New York Times in December 2009:

For instance, when puffer fish are raised in aquariums with filtered, bacteria-free water, they are nontoxic. Similarly, when Japanese newts or Panamanian frogs are raised on special diets, they lose their toxicity. These experiments indicate that tetrodotoxin-bearing animals obtain the toxin from the food chain. Indeed, several species of tetrodotoxin-producing bacteria have now been isolated from puffer fish, the blue-ringed octopus, certain snails and other animals. It appears that the animals become toxic by sequestering the bacterially produced toxin in their tissues.

Separately, from the Nobel Prize presentation speech in chemistry (1965):

Professor Woodward's activity has by no means been restricted to synthetic work. He has established the structure of many important compounds, for instance the peculiar fish poison tetrodotoxin, causing numerous fatalities in Japan

Also, Professor Harry Mosher at Stanford did much work on tetrodotoxin.

See also U.S. Patent 6,552,191, Method of extracting tetrodotoxin and U.S. Patent 7,576,202, Tritium-traced saxitoxin dihydrochloride and method for the production thereof.

We do not interpret Lands’ End or the law of trademarks to require that specimens of use from the Internet must always have pictures.

(...)

Second, the Board’s bright-line rule has no basis in trademark statute or policy. “It is well established . . . that the purpose of a trademark is to distinguish goods and to identify the source of goods.” In re Int’l Flavors & Fragrances Inc., 183 F.3d 1361, 1367 (Fed. Cir. 1999); see also McCarthy § 3:3 (“The prime question is whether the designation in question, as actually used, will be recognized in and of itself as an indication of origin for this particular product or service.”). To this end, the Lanham Act requires an applicant to show “use in commerce,” which is “the bona fide use of a mark in the ordinary course of trade.” 15 U.S.C. § 1127. To show such use, the mark must be “placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto.” Id. The statute thus specifies no particular requirements to demonstrate source or origin; for displays, the mark must simply be “associated” with the goods. See In re Marriott, 459 F.2d 525, 526 (CCPA 1972) (“The terms of the statute [15 U.S.C. § 1127] are met if the mark is placed ‘in any manner’ on the ‘displays associated’ with the goods.”).

[..., the TMEP, like the MPEP is not law]

We decline to follow the TMEP’s interpretation of Lands’ End and the three-part test, as applied to websites. We note that the TMEP is instructive, but “is not established law.” In re Pennington Seed, Inc., 466 F.3d 1053, 1059 (Fed. Cir. 2006).Moreover, it is unclear to what extent the TMEP requires pictures for electronic specimens such as websites.

[....]

On remand, the PTO must consider the evidence as a whole to determine if Sones’ specimen sufficiently associates his mark with his charity bracelets so as to “identify and distinguish the goods.” BellSouth, 60 F.3d at 1569; see also Damn I’m Good, Inc. v. Sakowitz, Inc., 514 F. Supp. 1357 (S.D.N.Y. 1981) (finding “Damn I’m Good” on bracelets to be ornamental, not source-identifying).

Judge Newman dissented, on advisory opinion grounds:

The court today issues an advisory opinion on a non-issue as between the parties. It makes no difference what we hold as to whether this examiner in this case had the right to ask for a picture, for the applicant has provided a picture. The trademark is being examined, and the picture is not at issue. “The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48 (1969). The appeal should be dismissed as moot. See Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974) (“The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”); Flast v. Cohen, 392 U.S. 83, 95 (1968) (advisory opinions are not within the purview of Article III).

A December 23 post by yahoo movies entitled Surprising Facts About 'It's A Wonderful Life' included some interesting facts but made a salient intellectual property omission. The facile dissemination of the movie arose in large part because the copyright was not renewed and the movie was thought to have entered the public domain. The story is still more complicated, because of derivative work rights relating to the underlying story ["The Greatest Gift" ]. Wikipedia notes: While the film's copyright had not been renewed, the plaintiffs were able to argue its status as a derivative work of a work still under copyright. It's a Wonderful Life is no longer shown as often on television as it was before enforcement of that derivative copyright. NBC is currently licensed to show the film on U.S. network television, and traditionally shows it twice during the holidays, with one showing on Christmas Eve. Paramount (via parent company Viacom's 1998 acquisition of Republic's then-parent, Spelling Entertainment) once again has ancillary rights for the first time since 1955, while NBC's broadcast rights are licensed from Trifecta Entertainment & Media (which holds television distribution of the Republic/Paramount theatrical library)

Thus, while yahoo noted

"Wonderful Life" flopped at the box office in 1946, not even recouping its production costs. As TV sets invaded America over the following 30 years, networks searched for Holiday programming-and "It's a Wonderful Life" proved perfect.

yahoo did not mention the interesting copyright IP angle associated with "It's a Wonderful Life," wherein the movie was considered to be in the public domain for years. Further adventures arose over colorization.

The Wikipedia entry for "It's a Wonderful Life" references the Supreme Court case Stewart v. Abend. Yes, it is James Stewart, but the relevant movie in that case was "Rear Window" and the relevant legal issue was "what happened" to derivative work rights when the author of that work agreed to assign the rights in the renewal term to the derivative work's owner but died before the commencement of the renewal period and the statutory successor [here Abend] does not assign the right to use the pre-existing work to the owner of the derivative work.

Of the players:

In 1953, actor Jimmy Stewart and director Alfred Hitchcock formed a production company, Patron, Inc., which obtained the motion picture rights in "It Had to Be Murder" from De Sylva's successors in interest for $10,000.

In 1954, Patron, Inc., along with Paramount Pictures, produced and distributed "Rear Window," the motion picture version of Woolrich's story "It Had to Be Murder." Woolrich died in 1968 before he could obtain the rights in the renewal term for petitioners as promised and without a surviving spouse or child. He left his property to a trust administered by his executor, Chase Manhattan Bank, for the benefit of Columbia University. On December 29, 1969, Chase Manhattan Bank renewed the copyright in the "It Had to Be Murder" story pursuant to 17 U.S.C. 24 (1976 ed.). Chase Manhattan assigned the renewal rights to respondent Abend for $650 plus 10% of all proceeds from exploitation of the story.

Abend's complaint against Hitchcock, Stewart, MCA, and Universal Film Exchanges alleges that the re-release of the motion picture ["Rear Window"] infringes his copyright in the story because petitioners' right to use the story during the renewal term lapsed when Woolrich died before he could register for the renewal term and transfer his renewal rights to them.

The argument of the petitioners [Stewart et al.] failed at the Court of Appeals and at the Supreme Court: Petitioners would have us read into the Copyright Act a limitation on the statutorily created rights of the owner of an underlying work. They argue in essence that the rights of the owner of the copyright in the derivative use of the pre-existing work are extinguished once it is incorporated into the derivative work, assuming the author of the pre-existing work has agreed to assign his renewal rights.

The case Stewart v. Abend is interesting for the identity of the dissenters: Justice Stevens joined by Justices Rehnquist and Scalia. The text of the dissent includes:

The legislative history confirms that the copyright in derivative works not only gives the second creative product the monopoly privileges of excluding others from the unconsented use of the new work, but also allows the creator to publish his or her own work product. The authority to produce the derivative work, which includes creative contributions by both the original author and the second artist, is dependent upon the consent of the proprietor of the underlying copyright. But once that consent has been obtained, and a derivative work has been created and copyrighted in accord with that consent, "a right of property spr[ings] into existence," Edmonds v. Stern, 248 F. 897, 898 (CA2 1918), that Congress intended to protect. Publication of the derivative work does not "affect the force or validity" of the underlying copyright except to the extent that it gives effect to the consent of the original proprietor.

[IPBiz notes that anyone who would argue that Justice Scalia has not invoked "legislative history" arguments is wrong.]

(...)

The critical flaw in the Court's analysis is its implicit endorsement of the Court of Appeals reasoning that:

"`If Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must also be unenforceable if the author dies before effecting renewal of the underlying copyright.'" Ante, at 215-216.

That reasoning would be valid if the sole basis for the protection of the derivative work were the contractual assignment of copyright, but Woolrich did not just assign the rights to produce a movie version the way an author would assign the publisher rights to copy and vend his work. Rather, he expressed his consent to production of a derivative work under 7. The possession of a copyright on a properly created derivative work gives the proprietor rights superior to those of [495 U.S. 207, 256] a mere licensee. As Judge Friendly concluded, this position is entirely consistent with relevant policy considerations. 22 In my opinion, a fair analysis of the entire 1909 Act, with special attention to 7, indicates that the statute embodied the same policy choice that continues to be reflected in the 1976 Act. Section 101 of the Act provides:

"A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant." 17 U.S.C. App. 304(c)(6)(A).

The majority, however, voted for Abend, and against Stewart. The relevance of the Abend case to "It's a Wonderful Life" is said to relate to derivative work rights. The Abend case related to the story by Woolrich, and the rights of Woolrich's successor Abend. The relevant story in "It's a Wonderful Life" is "The Greatest Life", by Philip Van Doren Stern.

Philip Van Doren Stern, who graduated from Rutgers and died in 1984, was a well-known writer of Civil War material [He wrote one book on the Lincoln assassination well-known to LBE. The book is notable for not understanding the full identity of Lewis Payne]. Van Doren Stern was unable to find a publisher for his 4,000 word short story "The Greatest Gift" and sent out 200 copies to friends in December 1943. One copy made its way to RKO, who purchased motion picture rights in 1944 and later sold them to Capra's people in 1945.

As one footnote, RKO and Capra both paid $10,000 for the movie rights, exactly the same amount paid for "It Had to be Murder"/"Rear Window." Both "It's a Wonderful Life" and "Rear Window" are on yahoo's list of 100 movies to see before you die."The Bucket List" is not among the 100.

Thursday, December 24, 2009

Microsoft Corp., the world's biggest software maker, must alter its popular Word software or stop selling the product after it lost an appeal of a $200 million patent-infringement verdict.

The conclusion of the CAFC's decision in the Microsoft/i4i case states:

The district court’s claim construction is affirmed, as are the jury’s findings of infringement and validity. The district court did not abuse its discretion in admitting i4i’s evidence as to damages or in granting enhanced damages. Finally, we affirm the entry of the permanent injunction as modified herein.

To support its argument that S4 practiced the ’449 patent, Microsoft offered testimony by a former i4i employee and its expert. i4i responded with evidence, specifically testimony by S4’s inventors, that S4 did not practice the claimed method. Though we require corroboration of “any witness whose testimony alone is asserted to invalidate a patent,” Finnigan Corp. v. Int’l Trade Comm’n, 180 F.3d 1354, 1369-70 (Fed. Cir. 1999) (emphasis added), here the inventor testimony was offered by i4i in response to Microsoft’s attack on the validity of the ’449 patent. It was not offered to meet Microsoft’s burden of proving invalidity by clear and convincing evidence. Cf. TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1159-60 (Fed. Cir. 2004); Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1217 (Fed. Cir. 2002); Finnigan, 180 F.3d at 1367. We know of no corroboration requirement for inventor testimony asserted to defend against a finding of invalidity by pointing to deficiencies in the prior art. Accordingly, we hold that corroboration was not required in this instance, where the testimony was offered in response to a claim of anticipation and pertained to whether the prior art practiced the claimed invention.

As to infringement:

We will uphold such a verdict if there was sufficient evidence to support any of the plaintiff’s alternative factual theories; we assume the jury considered all the evidence and relied upon a factual theory for which the burden of proof was satisfied. See Northpoint Tech., 413 F.3d at 1311-12.

(...)

Microsoft’s argument fails to distinguish between defects in legal theories and defects in the factual evidence. In this case, the jury was instructed that it could rely on any of three legal theories—direct, contributory, or induced infringement. All of these theories are legally valid and the corresponding instructions on each were proper. Because the jury could not have relied on a legally defective theory, the only remaining question is whether there was sufficient evidence to support either of i4i’s independently sufficient legal theories, contributory infringement or induced infringement.1 We conclude that there was.

Of evidence:

Daubert requires the district court ensure that any scientific testimony “is not only relevant, but reliable.” Id. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999). When the methodology is sound, and the evidence relied upon sufficiently related to the case at hand, disputes about the degree of relevance or accuracy (above this minimum threshold) may go to the testimony’s weight, but not its admissibility. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).

The CAFC cited Georgia-Pacific:

To support his royalty calculation, Wagner adjusted the baseline royalty rate of ($96) using the factors set out in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970)3

(,,,)

At their heart, however, Microsoft’s disagreements are with Wagner’s conclusions, not his methodology. Daubert and Rule 702 are safeguards against unreliable or irrelevant opinions, not guarantees of correctness. We have consistently upheld experts’ use of a hypothetical negotiation and Georgia-Pacific factors for estimating a reasonable royalty.

(...)

In making sales, Wagner explained that Microsoft’s biggest competitor is always itself: Microsoft has to convince consumers to purchase new versions of its products, even if they already have a “perfectly good” copy of an older version. To incentivize users to upgrade, Wagner testified that Microsoft included new features at no additional cost, making it difficult to value the new features.

(...)

The existence of other facts, however, does not mean that the facts used failed to meet the minimum standards of relevance or reliability. See Fed. R. Evid. 702 advisory committee’s note. Under Rule 702, the question is whether the expert relied on facts sufficiently related to the disputed issue.

(...)

As the Supreme Court explained in Daubert, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 509 U.S. at 596. Microsoft had these opportunities, and ably availed itself of them. Microsoft presented expert testimony and attacked the benchmark, survey, and calculation’s reasonableness on cross-examination. Cf. Micro Chem., 317 F.3d at 1392.

As to the injunction against Microsoft concerning Word:

The scope of this injunction is narrow, however. It applies only to users who purchase or license Word after the date the injunction takes effect. Users who purchase or license Word before the injunction’s effective date may continue using Word’s custom XML editor, and receiving technical support.

(...)

While we conclude that the injunction’s effective date should have been five months, rather than sixty days, from the date of its August 11, 2009 order, we affirm the district court’s issuance of a permanent injunction and otherwise affirm the injunction’s scope. Below, we address each factor in turn.

But there also seems to be solid evidence that Microsoft knew about i4i's work before adding these features to Word.

(...)

So here's the upshot: Microsoft spends some time and money removing a feature most people don't use but doesn't have to stop selling its product, i4i gets a moment in the headlines and a decent payday, patent lawyers rack up billable hours, and most consumers never notice the difference.

Plagiarism is inexcusable but it is no better than people trying to submit letters using aliases. As ironic as it may sound, at one point one reader addressing the plagiarism issue sent in two different letters on the same subject that originated from the same address. Each one had a different name that he wanted run with it. We ran neither letter because the person wanted to use an alias. When contacted his reply was essentially plagiarism is a serious offense while misleading people about who he was is perfectly fine. There is no difference. Both are acts of intentionally misleading people no matter how noble the writer’s objectives may seem to them and their supporters.

IPBiz suggests there is a difference.

Plagiarism is copying without attribution. Plagiarism misleads the reader concerning the source of the copied material. As IPBiz has pointed out, plagiarism is a bad thing, but it is not against Federal law. The Dastar decision of the US Supreme Court gives an example wherein copying without correct attribution is permissible under Federal law. Were viewers misled? You bet they were.

Aliasing is publishing without providing the true source.

One can have the source hidden by a pseudonym. The Federalist Papers are a historical example. The Patent Troll Tracker is a more recent example. The issue with the troll tracker was the likely presence of bias on the part of "troll tracker" Rick Frenkel, who was employed by Cisco at the time of the aliased postings. This did not mean that the postings were inaccurate, but rather that the reader was not calibrated as to the "not disinterested" position of the source.

A different twist on the conflict issue is in the area of medical ghostwriting, currently being investigated by Senator Grassley. Therein, one has a real person, typically a doctor, submitting and representing himself/herself as author of a paper actually written by someone else, typically a professional writer working for a drug company. In a related vein, certain law professors pass off as their own writings actually done by students. Dean Velvel has suggested this was the underlying problem in the Laurence Tribe plagiarism matter (ie, it was the ghostwriter, not Tribe, who plagiarized). Separately, most judicial opinions are primarily the writing of clerks, who are not credited with authorship or co-authorship.

The Ward Churchill case brings up a different dimension. Therein, Churchill went beyond representing authorship merely as unknown (as with the Federalist Papers or troll tracker) to use the name of a real person (but not Churchill) to make it appear that a third party was praising Chruchill, when in fact Churchill was praising Churchill. This of course was an act of deliberately misleading the readers.

In short, various forms of aliasing occur all the time, and not much is said. Much is said about plagiarism in journalism and in academia, but it is not against Federal law. It is not a good thing to copy without attribution, but, provided the copying is of accurate statements, the public is misled only as to the originator of the truth, not about the truth itself.

A far worse situation is when the public is misled about truth. For example, the Stanford Law Review stating that Gary Boone was the inventor of the integrated circuit. Broadcasting falsities as truth is a real problem, much worse than plagiarism or aliasing.

In a Hatch-Waxman action, Mylan has been sued by Schering Corporation and MSP Singapore Company in connection with Mylan's filing of an Abbreviated New Drug Application (ANDA) [with a paragraph IV certification] with the U.S. Food and Drug Administration (FDA) for Ezetimibe and Simvastatin Tablets, 10 mg/10 mg, 10 mg/20 mg, 10 mg/40 mg and 10 mg/80 mg.

Sunday, December 20, 2009

The death of influential, Nobel-winning economist Paul A. Samuelson led us to review his life and ideas. We discovered he was uncle to President Obama's top economic adviser, Lawrence Summers.

Atlantic interview. This June interview with Samuelson at the Atlantic Monthly site shows how sharp the 94-year-old was. On the influence of his work, he said, "every time some economics textbook writer sued another textbook writer for plagiarism, it never got anywhere because the judge would just say, 'it's all Samuelson lite.' " On his ideological rival Milton Friedman, he said, "I should tell you that I stayed on good terms with Milton for more than 60 years. But I didn't do it by telling him exactly everything I thought about him."

accessing a physical characteristic nonvolitionally obtained from a user;assigning an attribute corresponding to the physical characteristic to an avatar identified for the user; andfacilitating user interaction with a virtual environment via the avatar as constrained by the assigned attribute.

Claim 22:

A computer program product for interacting with a virtual environment, comprising:a computer-readable medium, comprising:a first set of codes for causing a computer to access a physical characteristic nonvolitionally obtained from a user;a second set of codes causing the computer to assign an attribute corresponding to the physical characteristic to an avatar identified for the user; anda third set of codes for causing the computer to facilitate user interaction with a virtual environment via the avatar as constrained by the assigned attribute.

Claim 23:

An apparatus for interacting with a virtual environment, comprising:an information source accessible for receiving a physical characteristic nonvolitionally obtained from a user;an avatar generation component for assigning an attribute corresponding to the physical characteristic to an avatar identified for the user; anda computing environment facilitating user interaction with a virtual environment via the avatar as constrained by the assigned attribute.

The issue from paragraph [0003]:

The artificiality of the avatars often results in frustration and miscommunication, thwarting the useful virtual social interaction for many people and reducing the potential for competitive interactions as well.

The gist of the solution from paragraph [0005]:

The subject innovation relates to systems and/or methods that provide a degree of reality for how an avatar is presented or allowed to interact within a virtual space of a computing environment. Linking the avatar to a physical characteristic of a user provides leverage to provide incentives or constraints that can encourage good behavior (e.g., healthy behaviors, virtuous behaviors, etc.).

Nelson also secured full and permanent federal funding for his state to extend Medicaid eligibility to everyone below 133 percent of the federal poverty level. The bill would require all states to do so, but Nebraska alone would not be required to pay a portion of the additional cost after 2016. And he won concessions for some nonprofit insurers and for providers of supplemental Medicare coverage from a new insurance tax, and he was able to roll back cuts to health savings accounts.

Constitutional?

Bob Park had a different observation on the health care bill:

Sen. Tom Harkin, the Iowa Democrat also known as Senator Bee Pollen, could not let the Health Reform Bill go through without a provision mandating that insurers reimburse alternative medicine providers. It was Harkin, you will recall, who was responsible for creation of the National Center for Complementary and Alternative Medicine (NCCAM), forcing Harold Varmus to resign as head of NIH. NCCAM hasn't found any cures, but it has done a credible job of using rigorous placebo-controlled double-blind studies to demonstrate that one herbal remedy after another is totally ineffective. Presumably the alternative medicine providers will be reimbursed for applying the placebo effect.

Saturday, December 19, 2009

There is an assertion of plagiarism as to words used by one Lynn Vakay which were not attributed to Hillsdale College Professor Gary Wolfram.

What caught the eye of IPBiz was the following text:

USC Professor Jonathan Aronson, an expert in intellectual property, said Vakay's column constituted plagiarism - despite the fact Wolfram had given her permission to use his ideas.

"In my view, it is improper what she did," Aronson said, adding it would have been a non-issue if she would have merely mentioned the source of the ideas.

"Is it actionable?" he said. "Nobody's going to sue her about it. She should be embarrassed by it."

As IPBiz has noted before, plagiarism and copyright infringement are two different things, with only the latter actionable under Federal law. The presence of permission in this case would seem to remove the issue of copyright infringement. And, noboby COULD SUE for plagiarism. As to issues under trademark law concerning false designation of source, perhaps Aronson needs to review the Dastar case.

As to what I might have done differently, I believe I should have taken the time to allow someone else to review my column and allow them to read Wolfram's column and look at them for similarities. I wish I had done that.

Wednesday, December 16, 2009

In INTELLECTUAL SCIENCE AND TECHNOLOGY, INC v. Sony, the CAFC affirmed a grant of summary judgment against plaintiff-patentee.

At issue was a means plus function claim: For a means-plus- function claim term, the term literally covers an accused device if the relevant structure in the accused device performs the identical function recited in the claim and that structure is identical or equivalent to the corresponding structure in the specification. Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090, 1099 (Fed. Cir. 2008).

Further at issue was the report of plaintiff-patentee's expert:

To satisfy the summary judgment standard, a patentee’s expert must set forth the factual foundation for his infringement opinion in sufficient detail for the court to becertain that features of the accused product would support a finding of infringement under the claim construction adopted by the court, with all reasonable inferences drawn in favor of the non-movant. Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1047-48 (Fed. Cir. 2000).

(...)

Turning to Dr. Michalson’s declaration, this court concludes that it does not sufficiently identify the structural elements of the claimed “data transmitting means.” An expert’s unsupported conclusion on the ultimate issue of infringement will not alone create a genuine issue of material fact. Arthur A. Collins, 216 F.3d at 1046. Moreover a party may not avoid that rule “by simply framing the expert’s conclusion as an assertion that a particular critical claim limitation is found in the accused device.” Id. This record discloses no more than an unsupported conclusion of infringement that is not sufficient to raise a genuine issue of material fact.

The term "off the shelf" appears in the decision:

To present a prospect of infringement, Intellectual Science must present a triable issue of fact that a person of skill in the art would recognize that these symbols depict an infringing device. See TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1374-75 (Fed. Cir. 2002) (affirming summary judgment of non-infringement because the record did not support assertion that one of skill in the art would equate the accused element, a multiplexer, with the claimed element, a decoder). Instead Intellectual Science argues vaguely that the structural elements are “off-the-shelf” components. Again, nothing in the record corroborates that assertion or shows that one of skill in the art would recognize the “off-the-shelf” component as matching the infringing means.

The word "conclusory" appeared:

Stated another way, the problem with equating the identified playback signal selection device with an ITDM on this record is the absence of any showing that the identified structure accomplishes the same function in the same way as the claimed structure. See Welker Bearing Co., 550 F.3d at 1099. Dr. Michalson’s affidavit supplied only the statement that the structures in the accused devices “perform the same function as the claimed ‘data transmitting means’ (i.e., transmitting to the host computer), in the same way (i.e., through a time division multiplexed structure) to achieve the same result (i.e., transmitted information sets).” That conclusory statement is insufficient. To permit a jury to conclude that the playback signal selection device is an ITDM, Dr. Michalson needed to supply at a minimum some description about the specific features of the accused playback signal selection device’s multiplexing of the audio information stream. Dr. Michalson did not supply any of the details necessary to identify an infringing device.

The CAFC cited the oral argument:

First, when counsel for Intellectual Science was asked at oral argument where exactly Dr. Michalson identified the structural elements in his declaration, counsel conceded that the language is “perhaps not as grammatical as one would wish.” Oral Arg. at 10:56, Oct. 9, 2009, available at http://oralarguments.cafc.uscourts.gov/mp3/2009-1142.mp3. Asking litigants to provide more than a difficult-to-decipher expert declaration does not impose too high a burden at summary judgment, especially where, as here, the structural elements are allegedly common.

Of the role of attorney argument:

While attorney argument might be able to clarify an otherwise ambiguous expert declaration in some circumstances, see Applied Medical Resources Corp. v. United States Surgical Corp., 448 F.3d 1324, 1335 n.5 (Fed. Cir. 2006) (“[T]he expert declaration and Applied’s argument provide[] particularized testimony and linking argument.” (emphasis added)), in this case those arguments render the expert’s declaration even less clear.

Intel, a member of the Coalition for Patent Fairness, has been sued by the FTC, who alleges the chip maker engaged in a decade-long campaign to stifle competition and strengthen its dominant position in the microchip market. Among other things was a charge of secretly redesigning key software in a way that deliberately stunted the performance of competitors' chips.

CBS copies "Law & Order," again

In the December 15 episode of "The Good Wife," [titled Lifeguard]a judge (Baxter) channels juvenile offenders to Palgrave Academy. The motive may involve gambling debts of the judge to some bad guys. So, now, we have had (at least) three judges channeling juveniles to bad places for bad reasons, with CBS copying the NBC plotline twice.

Chief Justice Adler (who looks a bit like Hillary Clinton) acknowledges she shares responsibility for what Baxter did, but revokes a judgeship offer to Diane, who comes across as the "good lawyer" in this episode. After a comment about not causing ripples, Diane says to the CJ: You're filled with water metaphors. [The initial symbolism was about lifeguards and swimmers.]

Two former county judges accused of taking millions of dollars in kickbacks to send juveniles to private detention facilities are partially immune from civil lawsuits, a federal judge in Pennsylvania ruled Friday [20 Nov 09].

The decision by U.S. District Judge A. Richard Caputo could make it harder for the people suing former Luzerne County judges Michael T. Conahan and Mark A. Ciavarella Jr. to collect damages.

Caputo said Ciavarella will avoid civil consequences for "the vast majority" of his conduct, because much of it occurred inside a courtroom, such as determination of delinquency and sentencing.

God bless America and – can I really be saying this? – God bless the legal profession! Despite the best efforts of the Obama administration, most of the world’s other governments (save the plucky Canucks), the United Nations and the Mainstream Media (MSM) to sweep Climategate under the carpet, the lawyers are putting this shoddy scandal where it belongs: in the dock. (Hat tip: Platosays)

The US Department of Energy (DOE) – under pressure, most likely, from Senator Inhofe – has issued a “Litigation Hold Notice” to its various sub-departments asking them to retain any documents pertaining to the Climatic Research Unit at University of East Anglia. Below – reports Watts Up With That - is a copy of the notice sent to the DOE’s Savannah office in South Carolina:

(...)

What does it mean? Big, BIG trouble for the Climategate scientists is what it means. You don’t mess with US lawyers and the reason that what might seem an essentially British affair comes under their jurisdiction is because the DOE has provided funding for these scientists.

One person in the nine-member Realclimate.orgteam -- U.K. scientist and Green Party activist William Connolley -- would take on particularly crucial duties. Connolley took control of all things climate in the most used information source the world has ever known -Wikipedia. Starting in February 2003, just when opposition to the claims of the band members were beginning to gel, Connolley set to work on the Wikipedia site. He rewrote Wikipedia's articles on global warming, on the greenhouse effect, on the instrumental temperature record, on the urban heat island, on climate models, on global cooling. On Feb. 14, he began to erase the Little Ice Age; on Aug. 11, the Medieval Warm Period. In October, he turned his attention to the hockey stick graph. He rewrote articles on the politics of global warming and on the scientists who were skeptical of the band. Richard Lindzen and Fred Singer, two of the world's most distinguished climate scientists, were among his early targets, followed by others that the band especially hated, such as Willie Soon and Sallie Baliunas of the Harvard-Smithsonian Center for Astrophysics, authorities on the Medieval Warm Period.

All told, Connolley created or rewrote 5,428 unique Wikipedia articles. His control over Wikipedia was greater still, however, through the role he obtained at Wikipedia as a website administrator, which allowed him to act with virtual impunity. When Connolley didn't like the subject of a certain article, he removed it -- more than 500 articles of various descriptions disappeared at his hand. When he disapproved of the arguments that others were making, he often had them barred -- over 2,000 Wikipedia contributors who ran afoul of him found themselves blocked from making further contributions. Acolytes whose writing conformed to Connolley's global warming views, in contrast, were rewarded with Wikipedia's blessings. In these ways, Connolley turned Wikipedia into the missionary wing of the global warming.

But cap-and-trade is a dead parrot. In a way, that’s a shame. Actually trying to pass it would allow for salting the political earth from which the sneaky, cynical idea sprang. But that, too, shall come.

Bill Ralston writes: "Why isn't the falsification of data on alleged global warming one of the top 'uh-oh' stories? For crying out loud - we just had a global conference agree to spend billions of dollars on a 'problem' based on fudged data!" That is definitely an "uh-oh" moment, showing how even scientists resort to spin control in order to squelch rivals. The hacked e-mails show how data can be massaged to support the desired story. That doesn't mean the underlying story of climate change isn't true, but it does mean climatologists will have to work harder to earn the trust of politicians and the public. My favorite Web site for this kind of debate is RealClimate.org. Folks on the other side of the question will no doubt have their own favorite resources, and I'm glad to pass them along as comments.

Of "uh-oh" moments, Alan Boyle wrote of Schon:

In 2002, a committee at Bell Labs, where he worked, finds that data sets had been fudged and reused.

IPBiz notes that the Beasley committee formed at the request of Bell Labs was not "at" Bell Labs. Lucent/Alcatel has since removed the Beasley Report from its website. Another Sikahema event.

Microsoft's Juku Plurk'd in China

Reuters reports that Microsoft has taken down its MSN Juku site after complaints from Plurk that about 80 percent of the client and product codebase for Microsoft's Juku appears to be a copy of its own service. [See Microsoft suspends Juku after plagiarism claims ]

From the graphics to the navigation, MSN Juku appears nearly identical to Plurk, which launched last year. "We were absolutely shocked and outraged when we first saw . . . the cosmetic similarities Microsoft's new offering had with Plurk," the company said. Plurk posted screenshots of what it says are its code and MSN Juku's code, which contain many near identical lines.

Gelles added a dimension to the story:

Plurk is one of a handful of micro-blogging sites that is blocked by Chinese authorities. Juku has not yet been blocked.

"We're still in shock asking why Microsoft would even stoop to this level of wilfully plagiarising a young and innovative upstart's work rather than reach out to us or innovate on their own terms," the company said in its post. "Of course, it just hits that much closer to home when all your years of hard work and effort to create something unique are stolen so brazenly. All the more ironic considering Microsoft has often been leading the charge on fighting for stronger IP laws and combating software piracy in China."

IPBiz notes that Microsoft has been pushing for weaker IP laws as to damages, and has itself presented a few questionable patent applications. The Coalition for Patent Fairness is generally believed to advocate weaker IP laws.

In a patent context, the term "gobsmacked" was related to the patents of BlackBoard:

Michael Feldstein is translating Backboard's patents into plain English and will post the results soon; "When you see what they are actually claiming to have invented, you will be well and truly gobsmacked." I'm already gobsmacked.

More recently, of the veined octopus and coconut shells:

"I was gobsmacked," said Finn, a research biologist at the museum who specializes in cephalopods. "I mean, I've seen a lot of octopuses hiding in shells, but I've never seen one that grabs it up and jogs across the sea floor. I was trying hard not to laugh."

Octopuses often use foreign objects as shelter. But the scientists found the veined octopus going a step further by preparing the shells, carrying them long distances and reassembling them as shelter elsewhere.

from http://apnews.myway.com/article/20091215/D9CJNOG80.html

Within slowtrav:

But viewing Giotto's Padova frescos describing the lives of Mary and her son Jesus was an incredible experience. The brilliant colours of these frescos are still so fresh, it seems to me, and the characters seem so simply painted yet convey so much emotion that I was truly gobsmacked (BTW, I have a patent pending on the use of that word.)

Monday, December 14, 2009

One recalls the words of the CAFC in Chef America v. Lamb-Weston: "a nonsensical result does not require the court to redraft the claims of the patent."

In ULTIMAX, the CAFC noted of anhydrous calcium sulfate, written in the patent app as“soluble calcium sulfate anhydride”:

contrary to the district court’s conclusion, interpreting the claim term to mean “soluble anhydrous calcium sulfate” is not rewriting the claim or correcting a typographical error. The drafters could not have intended to claim “soluble calcium sulfate anhydrite,” as that would have been redundant because the word “anhydrite” itself means “anhydrous calcium sulfate.” See, e.g., Webster’s Third New International Dictionary of the English Language Unabridged (1986) (defining “anhydrite” as “a mineral consisting of an anhydrous calcium sulfate CaSO4 . . .”). Instead, the term “soluble calcium sulfate anhydride” simply means, in the context of the ’556 patent, the same thing as “soluble anhydrous calcium sulfate.” The neutral expert, Dr. Seible, agreed that the context of the specification led to the conclusion that the patent drafter likely meant “anhydrite and not anhydride,” referring to the entire claim term. Id. at *41– 42. As Ultimax points out, CTS and Rice himself, a person of at least ordinary skill in the art, use the word “anhydride” when they mean “anhydrite,” with no resulting confusion. Ultimax Br. at 13–14. Thus, interpreting the claim in that way merely restates its plain meaning.

On top of the 2.3% decrease in patent filings, the annual report states - on page 49 - that maintenance fees, "the largest source of earned revenue by fee type", were down nearly 3% in financial year 2009. "As they are recognized immediately as earned revenue," the report states, "any fluctuations in the rates of renewal have a significant impact on the total earned revenue of the USPTO". It does, however, go on to say that as the US economy improves, renewal rates are expected to rebound.

IPBiz notes that the worst of the maintenance fee problem has yet to arrive at the USPTO. While the reported downswing arises mainly from decisions related to the current economic downswing, we will soon see the impact of changing patent grant rate from around 70% to less than 50%. One can't "rebound" by collecting a renewal fee on a patent application that was rejected.We can thank the USPTO's draconian response to Quillen and Webster's fanciful "97%" allowance rate for this time bomb. We can thank the lemming-like mentality of various IP professors for elevating the 97% mirage to something that the USPTO felt obliged to deal with.

IAM concludes:

If such an idea were to catch on more widely, to increase its revenues significantly, the USPTO would either have to rely on foreign applicants, such as the Chinese, to boost application totals (this is bound to happen to an extent in any case), or they are going to have to increase fees - probably quite significantly. Kappos has already talked about a temporary rise of 15% to tide the office through its current troubles. I would not be surprised if that became permanent and also led to a number of other offices around the world doing something similar. As things stand, it is difficult to see a decent alternative to this, despite the howls of outrage it is bound to cause.

The IAM piece arises as a comment on a CNN article covered earlier by IPBiz [ "Patent filings are a very controllable expense" ]. Further, notwithstanding the rosy picture given by many blogs following the change from Dudas to Kappos, one notes that Kappos has been pretty clear that there are problems that are not going to be resolved quickly. What part of "the nose of the airplane is pointed down" are some IP blogs unable to comprehend?

Three days after Bridgewater-Raritan High School was closed because of a bomb scare and two Bridgewater teens were arrested after a stash of bomb-making materials was discovered in one of their homes, the district’s superintendent said it is safe for students to return to campus Monday, Dec 14.

Superintendent Michael Schilder said the police presence would be "significant" on campus Monday to make students, staff and parents feel more secure after a 16-year-old junior at the school was arrested Friday with items officials say he planned to use to build an improvised explosive device and detonate it at his school.

Principal James Riccabono is expected to address the student body on Monday,according to a statement by district superintendent Michael Schilder. Schilder also praised the student who came forward with information about the threat.

"We are all very proud of this student for doing the right thing and acting in the interests of fellow students and staff," the said.

After the student told a police resource officer that the suspect was planning a "Columbine-like" attack, police and bomb-sniffing dogs scoured the school, which serves 2000 students in grades nine through 12. The teen was arrested Friday after police searched his parents’ home and was charged with attempted murder and possession of explosives, among other charges.

Prosecutor Forrest said the second teen was being charged with possession of destructive devices.

"Based on the evidence we have so far, those are the charges," Forrest said tonight. "But the investigation is ongoing."

Mr. Pearce is notable, among other things, for having an email included among the many within ClimateGate. As Mr. Pearce points out, Baseball Media Watch even discussed it:

A couple of weeks later a blogspot called Baseball Media Watch splashed it under a headline: “‘Biblical intensity’ in search for sign of man-made global warming — and getting money to prove it — ClimateGate email.” It included a couple of sentences from my draft: “For climatologists, the search for an irrefutable ‘sign’ of anthropogenic warming has assumed an almost Biblical intensity... The case remains ‘not proven.’” — 1996, from Fred Pearce.

After going through the "tree ring trick," Pearce gets to a central issue, the way the pro-warming people perceive, and deal with, the anti-warming people:

But it also true that there is plenty of evidence of a bunker mentality among many of the scientists, grousing and plotting against the handful of climate skeptics who, as they saw it, were trying to grab “their” data and then trash it on web sites and in op-ed articles that had far greater influence than the journals in which the scientists usually reported their work. Some of the language is ugly, especially discussion of trying to keep skeptics’ material out of scientific journals. That is not healthy, and it is not good for science. But it is rather understandable.

So, the "pros" were worried that a "handful" of "antis" were going to hijack "their" issue? And, to avoid this, they tried to keep the "antis" out of the (refereed) science journals, so that the "anti" work would be, "by definition", not reputable? This is not good for science AND it is NOT understandable that decent scientists would revert to some primitive tribal mentality to enforce their point of view. Perhaps good as the opening for the movie "2001", but, no, Mr. Pearce, not understandable here.

Mr. Pearce trys to sugar-coat this with well, they were only emails: How many of us could withstand scrutiny of 15 years of our e-mails? But the CRU guys were trying to manipulate journal publications, even if they were not writing this in emails.

Mr. Pearce noted that no one in the (liberal) media tried to defend Professor Jones:

I have concentrated on the media response because that has, to an extraordinary degree, been the story. But there will be other repercussions, when the breathless academics and policymakers catch up. This week there have been calls from members of American Physical Society to amend their 2007 statement declaring climate change an international emergency.

Of the reference to the APS, Mr. Pearce was apparently unaware of the response of APS President Cherry to the "call" from certain members of the APS for an alteration of the previous APS statement, and he might want to fold that in to his comments.[See The APS strikes back! ]

Of the FOIA requests and the failure to disclose data, Pearce writes:

It is worth explaining why that was so. Jones had always refused to release the data, partly, as the e-mails reveal, because he simply didn’t want to and figured those demanding it wanted to trash his life’s work. But it was also partly because he couldn’t — much of the data was obtained with confidentiality agreements attached, including data from his own government’s Met Office.

But later Mr. Pearce suggests that the members of the "pro" tribe did have access to the data (in spite of the confidentiality agreements?): Scientists have generally been good at sharing data within their priesthood — a somewhat closed world of publicly-employed scientists using peer-reviewed journals.

Contrast this "hidden" data world to the world of patents. A patent applicant has to have a "written description" to tell the world what knowledge the applicant possesses AND the applicant has to enable use thereof. What would happen to an applicant who told the patent examiner the data could not be shown because it was confidential?

The final words of the Pearce piece were ominous as to the "pro" position:

I have been speaking to a PR operator for one of the world’s leading environmental organizations. Most unusually, he didn’t want to be quoted. But his message is clear. The facts of the e-mails barely matter any more. It has always been hard to persuade the public that invisible gases could somehow warm the planet, and that they had to make sacrifices to prevent that from happening. It seemed, on the verge of Copenhagen, as if that might be about to be achieved.

But he says all that ended on Nov. 20. “The e-mails represented a seminal moment in the climate debate of the last five years, and it was a moment that broke decisively against us. I think the CRU leak is nothing less than catastrophic.”

If the result of ClimateGate is that everyone gets to look at all the data, and have open dialogue, the result is anything but catastrophic.

It turns out, assuming the documents are authentic, that these elite climate scientists were spinning their research. They hid data they didn’t like. They discussed boycotting publications that questioned their conclusions. They talked about using a "trick" to massage data.

**However, although he whirls around the phrase “war on science,” Gerson clearly doesn’t know what it means.

**So for Gerson to describe the scientists as arrogant, “a community coddled by global elites, extensively funded by governments, celebrated by Hollywood and honored with international prizes”–this is ludicrous. These are people who are regularly slandered, pulled before Congress, and indeed, subject to email hacking. They have been under intense and politically motivated fire for years. And, yes, they developed a bit of a siege/herd mentality as a result. Who wouldn’t?

Needless to say, there were some adverse comments in the thread underneath Mooney's post. For example:

Sorry, Chris,

Gerson is right on this one.

I am sympathetic, at a personal level, with the scientists responding to persistent attack by developing a siege mentality. I am not sympathetic with their response, which, the emails show, was to cherry-pick data and tailor their presentation to support the message they wanted to send. That may not be a war, but it’s certainly a battle against science, cut from the same cloth that you described in your book.

AND

As a computer coder, I must say if what was released as computer code is actually what they use to determine global warming this story has legs. The fortran code is utter garbage. Even if the raw data temps for input where released to the public, there are so many independent code snippets it would be impossible to replicate the results. I know temps have been getting warmer by about a half degree over the century, but I really would like to see the GHCN and NASA raw data and computer code to homogenize the data. If it looks anything like this stuff no wonder they won’t release it.

Of the dimension of petty academic squabbling, from a comment in the thread:

We may never know how much of the scandal stemmed from an ideological crusade, and how much was simply ambition to rise in academia. Unfortunately, the current system of reward for scientists, in which their rank is largely determined by a quick perusal of the length and source of a publication list by funding bureaucrats rather than a penetrating analysis of their work by true peers, fosters such shoddy work.

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.